B-141562, APRIL 7, 1960, 39 COMP. GEN. 684

B-141562: Apr 7, 1960

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A BIDDER WHO IS AN ESTABLISHED MANUFACTURER IN THE TRACTOR FIELD AND HAS PRODUCED MAJOR COMPONENTS FOR FORK-LIFT TRUCKS WAS ENTITLED TO REPRESENT ITSELF AS A MANUFACTURER FOR PURPOSES OF BID SUBMISSION EVEN THOUGH IT HAD NOT. A REQUIREMENT IN INVITATION SPECIFICATIONS THAT ALL MAJOR AND MINOR ASSEMBLIES BE OF STANDARD DESIGN OR MODEL RELATES TO DESIGNS AND MODELS WHICH ARE CURRENT AT TIME OF DELIVERY AND IS NOT TO BE INTERPRETED AS FOR APPLICATION AT TIME OF BID SUBMISSION TO PRECLUDE THE CONSIDERATION OF A BID SUBMITTED BY A BIDDER WHO REPRESENTS HIMSELF AS A MANUFACTURER. THE REQUEST FOR ADDITIONAL DATA IS NOT CONSIDERED TO BE UNFAIR TO OTHER BIDDERS. ALTHOUGH MORE DETAILED DESCRIPTIVE DATA MIGHT BE REQUIRED FROM BIDDERS WHO HAVE NOT HAD PRIOR PRODUCTION EXPERIENCE THAN FROM ESTABLISHED MANUFACTURERS.

B-141562, APRIL 7, 1960, 39 COMP. GEN. 684

BIDDERS - QUALIFICATIONS - PRIOR PRODUCTION EXPERIENCE BID EVALUATION - DELIVERY PROVISIONS UNDER AN INVITATION FOR FORK-LIFT TRUCKS WHICH DID NOT LIMIT ELIGIBLE BIDDERS TO ESTABLISHED MANUFACTURERS OF FORK-LIFT TRUCKS, A BIDDER WHO IS AN ESTABLISHED MANUFACTURER IN THE TRACTOR FIELD AND HAS PRODUCED MAJOR COMPONENTS FOR FORK-LIFT TRUCKS WAS ENTITLED TO REPRESENT ITSELF AS A MANUFACTURER FOR PURPOSES OF BID SUBMISSION EVEN THOUGH IT HAD NOT, AT THE TIME OF SUCH REPRESENTATION, ACTUALLY ENTERED INTO PRODUCTION. A REQUIREMENT IN INVITATION SPECIFICATIONS THAT ALL MAJOR AND MINOR ASSEMBLIES BE OF STANDARD DESIGN OR MODEL RELATES TO DESIGNS AND MODELS WHICH ARE CURRENT AT TIME OF DELIVERY AND IS NOT TO BE INTERPRETED AS FOR APPLICATION AT TIME OF BID SUBMISSION TO PRECLUDE THE CONSIDERATION OF A BID SUBMITTED BY A BIDDER WHO REPRESENTS HIMSELF AS A MANUFACTURER, EVEN THOUGH HE HAS NOT ACTUALLY PRODUCED THE ITEM AT THE TIME OF BID SUBMISSION. UNDER AN INVITATION WHICH DID NOT PUT BIDDERS ON NOTICE THAT SUBMISSION OF INADEQUATE DESCRIPTIVE DATA WOULD BE CAUSE FOR REJECTION BUT DID INCLUDE IN THE SUCCEEDING ALTERNATE BID PROVISION NOTICE THAT MATERIAL DEVIATIONS WOULD RESULT IN BID REJECTION, THE SUBMISSION OF LESS THAN COMPLETE DESCRIPTIVE DATA BY A BIDDER WHO HAD NOT ACTUALLY MANUFACTURED THE ITEM, BUT WHO SUBMITTED A BLANKET OFFER TO COMPLY WITH ALL OF THE REQUIREMENTS OF THE SPECIFICATIONS, DOES NOT JUSTIFY REJECTION OF THE BID SOLELY ON THE BASIS OF INSUFFICIENT DESCRIPTIVE DATA. A REQUEST AFTER BID OPENING BY A CONTRACTING OFFICER FOR ADDITIONAL DESCRIPTIVE DATA FROM A BIDDER WHO OFFERS TO MEET THE SPECIFICATIONS, WITHOUT RESERVATION, WOULD NOT PRECLUDE ACCEPTANCE OF THE BID, EVEN THOUGH THE BIDDER REFUSED TO FURNISH THE ADDITIONAL DATA; THEREFORE, THE BIDDER HAVING NO OPTION TO ACCEPT OR REFUSE AN AWARD, THE REQUEST FOR ADDITIONAL DATA IS NOT CONSIDERED TO BE UNFAIR TO OTHER BIDDERS. ALTHOUGH MORE DETAILED DESCRIPTIVE DATA MIGHT BE REQUIRED FROM BIDDERS WHO HAVE NOT HAD PRIOR PRODUCTION EXPERIENCE THAN FROM ESTABLISHED MANUFACTURERS, THE NATURE AND EXTENT OF THE PROOF OF A BIDDER'S ABILITY TO PERFORM PURSUANT TO THE CONTRACT REQUIREMENTS ARE MATTERS PRIMARILY FOR THE DETERMINATION OF THE CONTRACTING AGENCY AND, WHEN THE INTERESTS OF THE GOVERNMENT ARE ADEQUATELY PROTECTED, THE DETERMINATION OF THE CONTRACTING AGENCY WILL NOT BE QUESTIONED. A DETERMINATION THAT A BIDDER HAS THE ABILITY TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS, EVEN THOUGH HE HAS NOT HAD PRIOR PRODUCTION EXPERIENCE AND HAS SUBMITTED INADEQUATE DESCRIPTIVE DATA, UNDER AN INVITATION WHICH PROVIDES THAT NO LIABILITY ON THE PART OF THE GOVERNMENT SHALL ARISE PRIOR TO DELIVERY OF AN ACCEPTABLE PREPRODUCTION SAMPLE IS A PROPER ADMINISTRATIVE DETERMINATION WHERE THE INTERESTS OF THE GOVERNMENT ARE ADEQUATELY PROTECTED. AN AWARD TO A BIDDER WHO IS DETERMINED TO HAVE SUBMITTED THE LOW BID ON THE BASIS OF LOWER TRANSPORTATION COSTS COMPUTED ON THE ESTIMATED "APPROXIMATE" SHIPPING WEIGHTS STATED IN THE BID, WHICH WEIGHTS ARE LOWER THAN THOSE STATED BY THE OTHER BIDDERS WHO HAD ACTUAL PRIOR PRODUCTION EXPERIENCE, DOES NOT NEED TO BE QUESTIONED IN VIEW OF EVIDENCE WHICH INDICATES THAT THE CONTRACTOR CAN PRODUCE THE ITEM WEIGHING CLOSE TO THE ESTIMATE AND LESS THAN THE WEIGHT WHICH WOULD RESULT IN HIS DISPLACEMENT AS THE LOW BIDDER AND IN THE ABSENCE OF A PROVISION IN THE INVITATION REQUIRING GUARANTEED SHIPPING WEIGHTS.

TO THE SECRETARY OF THE NAVY, APRIL 7, 1960:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 4, 1960, FROM THE ASSISTANT SECRETARY ( MATERIAL), CONCERNING THE PROTEST OF THE TOW MOTOR CORPORATION AGAINST THE AWARD OF CONTRACTS FOR THE PURCHASE OF FORK-LIFT TRUCKS UNDER IFB 600-63-60 AND IFB 600-67-60 TO MINNEAPOLIS 1MOLINE COMPANY.

INVITATION NO. 600-63-60, AS AMENDED, ASKED FOR BIDS ON AN F.O.B. ORIGIN BASIS ON SUPPLYING 238 FORK-LIFT TRUCKS OF 6,000-POUND CAPACITY, AND INVITATION NO. 600-67-60 ASKED FOR BIDS ON 348 FORK-LIFT TRUCKS OF 4,000- POUND CAPACITY. BOTH INVITATIONS CALLED FOR THE SUBMISSION OF PREPRODUCTION SAMPLES; GAVE AN OPTION TO THE GOVERNMENT TO WAIVE PREPARATION, SUBMISSION, AND TESTING OF SUCH SAMPLES AND RECEIVE AN EQUITABLE REDUCTION IN THE CONTRACT PRICE; AND ADVISED BIDDERS THAT PREPARATION, SUBMISSION, AND TESTING OF PREPRODUCTION SAMPLES WOULD GENERALLY BE WAIVED WHERE THE IDENTICAL MATERIAL BID UPON HAD PREVIOUSLY BEEN EVALUATED AND APPROVED.

BIDS WERE OPENED ON SEPTEMBER 30, 1959, UNDER IFB NO. 600-63-60 AND THE BID OF TOWMOTOR IN THE AMOUNT OF $1,090,630 WAS LOW, WHILE THE BID OF MINNEAPOLIS-1MOLINE COMPANY IN THE AMOUNT OF $1,091,760 WAS SECOND LOW. HOWEVER, THE INVITATION REQUIRED BIDDERS TO SUBMIT CERTAIN SHIPPING DATA, INCLUDING THE SHIPPING WEIGHT OF EACH UNIT, AND LISTED THE NUMBER OF UNITS TO BE SHIPPED TO VARIOUS DESTINATIONS. BIDDERS WERE ADVISED, HOWEVER, THAT SUCH DESTINATIONS WERE INCLUDED FOR THE PURPOSE OF EVALUATING BIDS, AND FOR NO OTHER PURPOSE. THE BID OF TOWMOTOR LISTED A UNIT SHIPPING WEIGHT OF 11,000 POUNDS, WHILE THE BID OF MINNEAPOLIS-1MOLINE COMPANY SHOWED A UNIT SHIPPING WEIGHT OF "APPROXIMATELY 9,000 POUNDS.' UPON APPLICATION OF THOSE SHIPPING WEIGHTS TO THE BIDS IN QUESTION, THE TOTAL DELIVERED COST TO THE GOVERNMENT UNDER THE TOWMOTOR BID WAS EVALUATED AT $1,142,968 AND AT $1,138,931.70 UNDER THE MINNEAPOLIS-1MOLINE COMPANY BID. THE LATTER COMPANY WAS THEREFORE CONSIDERED TO BE THE LOW BIDDER UNDER THIS INVITATION.

BIDS UNDER IFB NO. 600-67-60 WERE OPENED ON (OCTOBER 7, 1959, AND THE BID OF MINNEAPOLIS-1MOLINE COMPANY IN THE AMOUNT OF $1,227,368 F.O.B. ORIGIN, OR $1,282,574.72 DELIVERED, WAS LOW, WHILE THE BID OF TOWMOTOR IN THE AMOUNT OF $1,363,260 F.O.B. ORIGIN, OR $1,419,000 DELIVERED, WAS SECOND LOW. THE ESTIMATED FREIGHT CHARGES TO DESTINATIONS WERE NOT A FACTOR IN DETERMINING THE LOW BIDDER UNDER THIS INVITATION.

BOTH INVITATIONS CONTAINED THE FOLLOWING PROVISION WITH RESPECT TO DESCRIPTIVE DATA:

DATA TO BE SUBMITTED WITH BID:

EACH BIDDER SHALL FURNISH DATA WITH HIS BID WHICH FULLY DESCRIBES THE EQUIPMENT OFFERED. THIS DATA SHALL IDENTIFY THE MANUFACTURER AND MODEL AND SHALL CONSIST OF SUCH LITERATURE, DRAWINGS, PHOTOGRAPHS AND OTHER TECHNICAL DATA AS IS NECESSARY TO FULLY DESCRIBE THE EQUIPMENT.

EVERY EXCEPTION TO THE REQUIREMENTS OF THE APPLICABLE SPECIFICATIONS SHALL BE EXPLAINED IN DETAIL.

THIS DATA IS REQUESTED TO FACILITATE EVALUATION OF THE BID OR OFFER.

THIS PROVISION WAS FOLLOWED IN EACH INVITATION BY THE FOLLOWING ADVICE:

NO ALTERNATE BIDS:

BIDS OFFERING ARTICLES WHICH VARY IN ANY MATERIAL RESPECT FROM THE SPECIFICATIONS WILL NOT BE CONSIDERED.

THE BID SUBMITTED BY MINNEAPOLIS-1MOLINE COMPANY UNDER EACH INVITATION WAS ACCOMPANIED ONLY BY OUTLINE DRAWINGS SHOWING SIDE AND TOP VIEWS OF THE TRUCKS OFFERED, AND BY A SEPARATE SPECIFICATION SHEET WHICH IDENTIFIED THE TRUCKS OFFERED AS BIG MO MODELS II AND III AND DESCRIBED IN GENERAL TERMS THE CAPACITY, ENGINE, DRIVE MECHANISM, BRAKES, FRAME, CONTROLS, AND SAFETY GUARD TO BE INCORPORATED INTO SUCH TRUCKS. HOWEVER, EACH BID WAS ACCOMPANIED BY A LETTER WHICH STATED THAT THE BIDDER WAS PROPOSING TO MEET ALL REQUIREMENTS OF THE APPLICABLE SPECIFICATIONS AND THAT ANY FURTHER INFORMATION WHICH MIGHT BE NEEDED BY THE CONTRACTING AGENCY WOULD BE SUPPLIED UPON REQUEST.

UNDER DATE OF OCTOBER 2, 1959, AND APPARENTLY IN RESPONSE TO A TELEPHONIC REQUEST FOR VERIFICATION OF ITS SHIPPING WEIGHT UNDER IFB 600-63-60, MINNEAPOLIS-1MOLINE COMPANY FORMALLY CONFIRMED THE ACCURACY OF SUCH WEIGHT, TOGETHER WITH AN EXPLANATION THAT, AS MANUFACTURER OF ALL MAJOR COMPONENTS, THEY HAD BEEN ABLE TO INCORPORATE CAPACITY FOR HANDLING GREATER LOADS AT LOWER WEIGHT INTO THEIR OVERALL DESIGN.

ON OCTOBER 14, 1959, THE CONTRACTING AGENCY REQUESTED MORE DETAILED INFORMATION FROM MINNEAPOLIS-1MOLINE COMPANY ON VARIOUS TECHNICAL ASPECTS OF THE TRUCKS IT WAS OFFERING UNDER EACH INVITATION. SUCH INFORMATION, INCLUDING DATA APPARENTLY INTENDED TO SHOW THAT THE TRUCKS PROPOSED WOULD NOT WEIGH IN EXCESS OF THE WEIGHTS SHOWN IN ITS BIDS, WAS SUPPLIED BY THE BIDDER ON OCTOBER 19, AT WHICH TIME THE BIDDER ALSO ADVISED THAT IT HAD ENTERED INTO A CONTRACTUAL AGREEMENT WITH A PRINCIPAL MANUFACTURER OF INDUSTRIAL FORK-LIFT TRUCKS UNDER WHICH THE BIDDER HAD RECEIVED FULL INFORMATION RELATIVE TO THE DESIGN AND PERFORMANCE OF SUCH VEHICLES AND THAT THE UNITS PROPOSED TO BE FURNISHED BY THE BIDDER WOULD BE SIMILAR TO SUCH TRUCKS, WITH CERTAIN MODIFICATIONS NECESSARY TO MEET THE SPECIFICATION REQUIREMENTS OF THE INVITATIONS FOR BIDS.

UNDER DATE OF OCTOBER 15, 1959, TOWMOTOR CALLED TO THE ATTENTION OF THE DEPARTMENT OF THE NAVY THE FACT THAT MINNEAPOLIS-1MOLINE COMPANY HAD NEVER MANUFACTURED A FORK-LIFT TRUCK AND RAISED THE QUESTION WHETHER THE BIDDER, FOR THAT REASON, WAS A QUALIFIED BIDDER UNDER THE INVITATIONS FOR BIDS AND THE REQUIREMENTS OF THE SPECIFICATIONS FORMING A PART THEREOF. ADDITIONALLY, TOWMOTOR POINTED OUT THAT NONE OF THE ESTABLISHED MANUFACTURERS WHO HAD SUBMITTED BIDS UNDER IFB 600-63-60 HAD LISTED SHIPPING WEIGHTS AS LOW AS THE 9,000-POUND WEIGHT LISTED BY MINNEAPOLIS- 1MOLINE COMPANY, AND QUESTIONED THE TECHNICAL FEASIBILITY OF PRODUCING A TRUCK MEETING SPECIFICATION REQUIREMENTS WHICH WOULD NOT SUBSTANTIALLY EXCEED THAT WEIGHT.

THE BIDS OF MINNEAPOLIS-1MOLINE COMPANY, INCLUDING THE ADDITIONAL INFORMATION SUBMITTED BY THE BIDDER UNDER DATE OF OCTOBER 2 AND 19, WERE SUBMITTED TO THE NAVY DEPARTMENT'S BUREAU OF SUPPLIES AND ACCOUNTS FOR TECHNICAL EVALUATION. UNDER DATE OF NOVEMBER 6, 1959, THAT ACTIVITY SUBMITTED AN ANALYSIS OF THE DATA RECEIVED FROM THE BIDDER WHICH EXPRESSED DOUBT CONCERNING THE ACCURACY OF THE WEIGHTS OF BOTH VEHICLES, THEIR STABILITY, AND THE CORRECTNESS OF THE DISTANCE FROM CENTER LINE OF DRIVE WHEEL TO FACE OF CARRIAGE PLATE FOR THE 6,000 POUND CAPACITY VEHICLE. BASED UPON SUCH ANALYSIS, THIS ACTIVITY CONCLUDED AS FOLLOWS:

4. IT IS DOUBTFUL THAT ANY MANUFACTURER CAN BUILD, IN A RELATIVELY SHORT TIME, A COMPLEX VEHICLE FOREIGN TO HIS COMMERCIAL LINE AT A PRICE CHEAPER THAN ALL NORMAL PRODUCERS OF THIS EQUIPMENT AND AT WEIGHTS SUBSTANTIALLY LOWER THAN COMMERCIAL EQUIVALENTS. IT IS ALSO DOUBTFUL THAT A MANUFACTURER CAN PRODUCE A SATISFACTORY TRUCK AS COMPLEX AS A FORK LIFT TRUCK FROM MERE THEORETICAL ANALYSIS AS APPEARS TO BE THE INTENT OF THIS BIDDER. NORMAL PRACTICE REQUIRES TRIAL AND ERROR DEVELOPMENT AND TESTING IN ADDITION TO THEORETICAL ANALYSIS; TWO OR THREE MODELS ARE USUALLY BUILT AND TESTED BEFORE A SATISFACTORY VEHICLE IS PRODUCED. THE GOVERNMENT TESTING GROUNDS SHOULD NOT BE USED AS THE EXPERIMENTAL LABORATORY FOR THIS PURPOSE. THE MILITARY SPECIFICATIONS WERE WRITTEN TO ASSURE PROCUREMENT OF EQUIPMENT OF RECOGNIZED QUALITY WHICH HAS ALREADY ACHIEVED COMMERCIAL ACCEPTANCE. THIS IS THE BASIS UPON WHICH THE ENDURANCE TESTS WERE DEVELOPED, AND IS THE STATED INTENT OF PARAGRAPH 3.1, 3.1.2 AND 3.1.3 OF THE GOVERNING SPECIFICATIONS.

UNDER DATE OF NOVEMBER 17, 1959, THE INSPECTOR OF NAVAL MATERIAL, MINNEAPOLIS, SUBMITTED A PARTIAL PREAWARD SURVEY REPORT ON MINNEAPOLIS 1MOLINE COMPANY, INCLUDING AN EVALUATION OF THE TOTAL WEIGHT OF THE UNITS OFFERED VERSUS THE TEST REQUIREMENTS, TO THE CONTRACTING OFFICER. AMONG OTHER FINDINGS, THIS REPORT INDICATED THAT THE COMPANY HAD FULLY ANALYZED THE SPECIFICATIONS AND WAS FULLY AWARE OF THE REQUIREMENTS INVOLVED, AND THAT ITS PROGRAM FOR CONSTRUCTION OF THE UNITS BID UPON HAD BEEN THOROUGHLY PLANNED. THIS REPORT INCLUDED INFORMATION THAT THE BIDDER, IN ADDITION TO HAVING EMPLOYEES WITH CONSIDERABLE EXPERIENCE IN THE DESIGN OF FORK-LIFT TRUCKS AND THEIR COMPONENT PARTS, HAD ESTABLISHED A WORKING AGREEMENT WITH ERICKSON POWER LIFT TRUCKS, INC., AN ESTABLISHED MANUFACTURER OF COMMERCIAL FORK LIFT TRUCKS, TO PROVIDE ADDITIONAL TECHNICAL KNOWLEDGE AND ADVICE ON THE DESIGN, MANUFACTURE, AND OPERATIONAL REQUIREMENTS OF THE UNITS, AND TO MANUFACTURE CERTAIN COMPONENT PARTS. THE CONCLUSION REACHED IN THIS REPORT WAS THAT THE BIDDER HAD THE TECHNICAL ABILITY AND PRODUCTIVE CAPACITY TO PRODUCE THE ITEMS REQUESTED UNDER BOTH INVITATIONS AND THAT THE BIDDER COULD DEVELOP ACCEPTABLE TRUCKS AND MEET THE SPECIFIED DELIVERY SCHEDULE.

THE PREAWARD SURVEY REPORT WAS SUBMITTED TO THE BUREAU OF SUPPLIES AND ACCOUNTS UNDER DATE OF DECEMBER 3, 1959, WITH A REQUEST FOR A RESTATEMENT, IN VIEW OF THE ADDITIONAL INFORMATION IN THE SURVEY REPORT, OF THE OBJECTIONS CONTAINED IN THE BUREAU'S PRIOR REPORT OF NOVEMBER 6. DECEMBER 8 THE BUREAU OF SUPPLIES AND ACCOUNTS ADVISED THAT ITS PRIMARY OBJECTION TO RECOMMENDING AN AWARD TO MINNEAPOLIS 1MOLINE COMPANY WAS BASED ON THE FACT THAT HIS COMPANY HAD NEVER DESIGNED, DEVELOPED AND MANUFACTURED FORK-LIFT TRUCKS AND THAT THE FORK LIFT TRUCK PROPOSED BY THE BIDDER WAS AN UNKNOWN PRODUCT. CONSEQUENTLY, NO RECORDS, TESTS, OR COMMERCIAL USAGE DATA EXISTED UPON WHICH TO BASE A CONCRETE APPRAISAL OF SUCH TRUCKS. THE BUREAU THEREFORE ADVISED THAT, DESPITE THE ADDITIONAL INFORMATION CONTAINED IN THE PREAWARD SURVEY REPORT, IT WAS CONSIDERED DOUBTFUL THAT THE BIDDER COULD BUILD A 6,000-POUND FORK-LIFT TRUCK AT THE LIGHT WEIGHT SPECIFIED IN ITS BID. IN VIEW THEREOF, AND IN THE INTEREST OF ASSURING THAT PROCUREMENT ACTION WOULD RESULT IN THE DELIVERY OF TRUCKS WITH DEMONSTRATED QUALITY AND PERFORMANCE, THE BUREAU AGAIN STATED IT WAS UNABLE TO RECOMMEND AWARD TO MINNEAPOLIS-1MOLINE COMPANY.

AWARDS TO MINNEAPOLIS-1MOLINE COMPANY UNDER BOTH INVITATIONS WERE MADE ON DECEMBER 21, 1959. THE CONTRACTING OFFICER'S STATEMENT OF FACTS UNDER IFB 600-63-60 INDICATING HIS DETERMINATION THAT MINNEAPOLIS 1MOLINE COMPANY WAS A RESPONSIBLE BIDDER AND HAD SUBMITTED THE LOWEST RESPONSIVE BID WAS BASED UPON THE FOLLOWING CONSIDERATIONS:

(A) THERE IS NO REQUIREMENT IN THE SPECIFICATION THAT ONLY BIDDERS WHO HAVE PREVIOUSLY PRODUCED FORK-LIFT TRUCKS WILL BE CONSIDERED FOR AWARD. MINNEAPOLIS-1MOLINE IS AN ESTABLISHED MANUFACTURER IN THE TRACTOR FIELD, HAS NATIONWIDE DISTRIBUTORSHIP, AND HAS AN ARRANGEMENT WITH ERICKSON POWER LIFT TRUCKS, INC., AN ESTABLISHED FORK-TRUCK MANUFACTURER, TO MODIFY AN EXISTING ERICKSON FORK TRUCK TO MEET SPECIFICATIONS OF THE SUBJECT CONTRACT.

(B) WHILE MINNEAPOLIS-1MOLINE DID NOT SUBMIT COMPLETE DETAILED DATA WITH ITS BID, IT DID FURNISH A POSITIVE STATEMENT THAT THE EQUIPMENT IT OFFERED IS IN STRICT ACCORDANCE WITH GOVERNING SPECIFICATIONS (AS REQUIRED ON PAGE 8 OF THE SCHEDULE OF THE INVITATION) AND DID FURNISH DATA AND PROPOSALS TO INDICATE THE PRODUCT WHICH IT PROPOSED TO FURNISH.

(C) AFTER TECHNICAL EVALUATION, IT COULD NOT BE AFFIRMATIVELY STATED THAT MINNEAPOLIS-1MOLINE COULD NOT BUILD A TRUCK WITHIN ITS 9,000 POUNDS SHIPPING WEIGHT ESTIMATED AND FURTHER THE COMPANY HAS REITERATED THAT ITS 9,000 POUND SHIPPING WEIGHT IS CORRECT. MOREOVER, THE COMPANY HAS AGREED TO REPAY THE GOVERNMENT FOR ANY EXCESS COSTS RELATED TO WEIGHT IN EXCESS OF 9,000 POUNDS.

(D) AFTER EVALUATION THE BID OF MINNEAPOLIS-1MOLINE IS THE LOWEST BID SUBMITTED.

(E) THE COMPANY IS A RESPONSIBLE BIDDER IN ACCORDANCE WITH ASPR 1 903. IN DETERMINING MINNEAPOLIS-1MOLINE'S RESPONSIBILITY THE CONTRACTING OFFICER WAS OF THE OPINION THAT THE STATEMENT BY TECHNICAL PERSONNEL THAT IT IS DOUBTFUL THAT MINNEAPOLIS-MOLINE COULD BUILD A FORK TRUCK (FOREIGN TO ITS COMMERCIAL LINE) IN A SHORTER TIME, AT A CHEAPER PRICE, AND WITH LOWER WEIGHTS THAN OTHER COMPANIES IN THE MHE INDUSTRY WITHOUT A LONG PERIOD OF TRIAL AND ERROR DEVELOPMENT TESTING WERE GENERALITIES AND, IN FACT, WERE OVERCOME BY THE AFFIRMATIVE REPORT OF THE INM AFTER AN ON-THE- SPOT SURVEY OF THE MINNEAPOLIS 1MOLINE COMPANY AND ITS PLANS FOR ENGINEERING AND PRODUCTION OF THE TRUCKS.

EXCEPT FOR (C) ABOVE, THESE CONSIDERATIONS ARE REPEATED IN THE CONTRACTING OFFICER'S STATEMENT OF FACTS UNDER IFB 600-67-60.

TOWMOTOR CONTENDS THAT BOTH AWARDS WERE ERRONEOUS BECAUSE THE BIDS OF MINNEAPOLIS-1MOLINE COMPANY WERE NOT RESPONSIVE TO THE TERMS OF THE INVITATIONS, SINCE THE BIDDER HAD NEVER MANUFACTURED FORK-LIFT TRUCKS AND DID NOT FURNISH DATA, REQUIRED BY THE INVITATIONS, IN SUFFICIENT DETAIL TO PROVE ITS ABILITY TO PERFORM WITHIN THE TIME SCHEDULES ESTABLISHED BY THE INVITATIONS. IN SUPPORT OF THIS CONTENTION TOWMOTOR CALLS ATTENTION TO THE PROVISION OF THE INVITATION ENTITLED ,DESCRIPTIVE DATA TO BE SUBMITTED WITH BID" QUOTED ABOVE, AND TO THE PROVISIONS OF PARAGRAPHS 3.1 AND 3.1.2 OF THE APPLICABLE SPECIFICATIONS WHICH READ AS FOLLOWS: 3.1 GENERAL. EXCEPT FOR THE BATTERY, TRUCKS COVERED BY THIS SPECIFICATION SHALL BE COMPLETE AND READY FOR OPERATION WHEN DELIVERED. BATTERIES, IF REQUIRED, SHALL BE AS SPECIFIED IN 3.5.3. TRUCKS SHALL BE CONSTRUCTED AND EQUIPPED TO MEET ALL REQUIREMENTS SPECIFIED HEREIN. ALL MAJOR AND MINOR ASSEMBLIES, INCLUDING ACCESSORIES, SHALL BE NEW AND OF A STANDARD DESIGN OR MODEL PRODUCT OF THE MANUFACTURER CURRENT AT TIME OF DELIVERY, EXCEPT FOR SUCH MINOR MODIFICATIONS FROM MANUFACTURER'S STANDARD AS MAY BE REQUIRED TO CONFORM TO THESE SPECIFICATION REQUIREMENTS. THE COMPONENT PARTS OF THE UNIT NEED NOT BE THE PRODUCTS OF THE SAME MANUFACTURER. HOWEVER, THE MANUFACTURER SHALL BE SO ESTABLISHED IN THE INDUSTRY THAT PROMPT AND CONTINUING SERVICE AND DELIVERY OF SPARE PARTS MAY BE ASSURED.

3.1.2 MATERIAL. MATERIALS SHALL BE AS SPECIFIED HEREIN. MATERIAL NOT DEFINITELY SPECIFIED MAY BE MANUFACTURER'S NORMAL COMMERCIAL PRODUCT, BUT SHALL MEET TEST REQUIREMENTS SPECIFIED IN SECTION 4. "NORMAL COMMERCIAL PRODUCT" SHALL BE INTERPRETED TO MEAN AN ITEM PRODUCED BY A MANUFACTURER NORMALLY ENGAGED IN COMMERCIAL PRODUCTION OF THE ITEM (S) COVERED BY THIS SPECIFICATION. THE GOVERNMENT RESERVES THE RIGHT TO REQUIRE ANY BIDDER, WHO PROPOSES TO FURNISH OTHER THAN A "NORMAL COMMERCIAL PRODUCT" OR GOVERNMENT SPECIFIED ITEM TO SUBMIT, PRIOR TO AND AS A CONDITION PRECEDENT TO THE AWARD OF CONTRACT, DETAILED ENGINEERING DRAWINGS OF THOSE PARTS HE PROPOSES TO FURNISH IN LIEU THEREOF FOR APPROVAL OF THE CONTRACTING OFFICER.

IT IS TOWMOTOR'S INTERPRETATION OF THESE PROVISIONS THAT BIDDERS ARE REQUIRED TO HAVE PRIOR EXPERIENCE IN MANUFACTURING THE PRODUCT OR, IN THE EVENT A BIDDER DOES NOT HAVE SUCH PRIOR EXPERIENCE, IT IS MANDATORY, BOTH FOR THE PROTECTION OF THE GOVERNMENT AND FOR PROTECTION OF THE INTERESTS OF OTHER BIDDERS, THAT SUCH BIDDER BE REQUIRED TO FURNISH DESCRIPTIVE DATA IN SUCH DETAIL AS WILL LEAVE NO DOUBT AS TO THE EXACT NATURE AND CHARACTERISTICS OF THE PRODUCT OFFERED. IN THIS CONNECTION, TOWMOTOR POINTS OUT THAT, WHILE ESTABLISHED MANUFACTURERS MIGHT DESCRIBE THEIR PRODUCT BY MODEL NUMBER, THE GOVERNMENT AND OTHER BIDDERS CAN BE ADEQUATELY INFORMED AS TO ITS CHARACTERISTICS MERELY BY REFERENCE TO ALREADY PUBLISHED BROCHURES OR CATALOGS. HOWEVER, SINCE THIS WAS NOT THE SITUATION IN THE CASE OF MINNEAPOLIS-1MOLINE COMPANY, IT CONTENDS THAT GRANTING AN OPPORTUNITY TO FURNISH MORE COMPLETE DESCRIPTIVE DATA AND TO VERIFY ITS SHIPPING WEIGHTS ALLOWED THAT BIDDER TO DECIDE, AFTER BID OPENING, WHETHER IT REALLY WANTED THE AWARD AND, IN THE EVENT IT DID NOT, TO OBTAIN RELEASE FROM ITS BIDS BY CHANGING ITS SHIPPING WEIGHTS OR BY REFUSING TO SUBMIT THE ADDITIONAL DATA.

CONCERNING THE QUESTION WHETHER THE INVITATIONS CONTEMPLATED THAT ONLY ESTABLISHED MANUFACTURERS OF FORK-LIFT TRUCKS WOULD BE ELIGIBLE TO SUBMIT BIDS, WE FIND NOTHING IN THE LANGUAGE OF EITHER THE INVITATIONS OR THE SPECIFICATIONS TO COMPEL THIS CONCLUSION. NO PROVISION OF THE INVITATION SPECIFICALLY LIMITS BIDDERS TO THAT CATEGORY, AND UNDER THE PROVISIONS OF SECTION 1 (A) OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35, AND IMPLEMENTING REGULATIONS ISSUED THEREUNDER, IT WOULD APPEAR THAT MINNEAPOLIS-1MOLINE COMPANY WAS ENTITLED TO REPRESENT ITSELF AS A "MANUFACTURER" OF FORK-LIFT TRUCKS FOR THE PURPOSE OF BID SUBMISSION EVEN THOUGH IT HAD NOT, AT THE TIME OF SUCH REPRESENTATION, ACTUALLY ENTERED INTO PRODUCTION. SEE 39 COMP. GEN. 254.

WITH REFERENCE TO THE PROVISIONS OF THE SPECIFICATIONS QUOTED ABOVE, THAT PORTION OF PARAGRAPH 3.1 WHICH REQUIRES ALL MAJOR AND MINOR ASSEMBLIES TO BE OF A STANDARD DESIGN OR MODEL RELATES ONLY TO DESIGNS OR MODELS WHICH ARE CURRENT AT TIME OF DELIVERY AND, THEREFORE, CANNOT BE INTERPRETED TO APPLY AT TIME OF BID SUBMISSION, BID OPENING, OR BID AWARD. IN VIEW THEREOF WE MUST CONCLUDE THAT MINNEAPOLIS-1MOLINE COMPANY WAS AN ELIGIBLE BIDDER AND THAT ITS BIDS WERE, TO THAT EXTENT, ENTITLED TO CONSIDERATION FOR AWARD.

WITH RESPECT TO THE QUESTION WHETHER THE NATURE OF THE DESCRIPTIVE DATA SUBMITTED WITH THE BIDS OF MINNEAPOLIS-1MOLINE COMPANY WAS SUCH AS TO REQUIRE ITS BIDS TO BE REJECTED AS NONRESPONSIVE, IT SHOULD BE NOTED THAT THE PORTION OF THE INVITATION WHICH REQUIRED THE SUBMISSION OF DESCRIPTIVE DATA CONTAINED NO PROVISION ADVISING BIDDERS THAT FAILURE TO COMPLY, OR PARTIAL COMPLIANCE, WOULD BE CAUSE FOR REJECTION OF THE BID. SEE 36 COMP. GEN. 376. CONVERSELY, THE PROVISION ON ALTERNATE BIDS, WHICH APPEARED IN THE INVITATION IMMEDIATELY FOLLOWING THE DESCRIPTIVE DATA REQUIREMENT, DID PROVIDE THAT MATERIAL DEVIATIONS FROM THE SPECIFICATIONS WOULD RESULT IN BID REJECTION. WHILE THE FAILURE OF A DESCRIPTIVE DATA REQUIREMENT TO STATE SPECIFICALLY THAT NONCOMPLIANCE WILL RESULT IN BID REJECTION HAS BEEN HELD INSUFFICIENT BY THIS OFFICE TO EXCUSE A BIDDER WHO FAILED TO SUBMIT SUCH DATA, IT IS OUR OPINION THAT THE FAILURE IN THE INSTANT INVITATIONS TO INCLUDE SPECIFIC NOTICE TO BIDDERS THAT SUBMISSION OF INADEQUATE DESCRIPTIVE DATA WOULD BE CAUSE FOR BID REJECTION, WHILE INCLUDING SUCH NOTICE IN THE ALTERNATE BID PROVISION, WOULD BE SUFFICIENT TO JUSTIFY A BIDDER'S BELIEF THAT THE SUBMISSION OF LESS THAN COMPLETE DESCRIPTIVE DATA, TOGETHER WITH A BLANKET OFFER TO COMPLY WITH ALL REQUIREMENTS OF THE SPECIFICATIONS AND TO SUBMIT ADDITIONAL DESCRIPTIVE DATA IF NECESSARY, WOULD COMPLY WITH THE REQUIREMENTS OF THE INVITATIONS. WE ARE, THEREFORE, UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER WAS REQUIRED TO REJECT THE BIDS OF MINNEAPOLIS-1MOLINE COMPANY SOLELY ON THE GROUND THAT SUCH DESCRIPTIVE DATA AS WAS SUBMITTED WITH ITS BIDS WAS CONSIDERED INSUFFICIENT TO EVALUATE THE BIDS. SEE 38 COMP. GEN. 59, 64.

NEITHER ARE WE ABLE TO CONCLUDE THAT THE REQUEST FOR ADDITIONAL DESCRIPTIVE DATA AFTER BID OPENING RESULTED IN UNFAIRNESS TO OTHER BIDDERS BY PERMITTING MINNEAPOLIS-1MOLINE COMPANY, AT THE TIME OF SUCH REQUEST, TO DECLINE AWARD BY FAILURE OR REFUSAL TO SUBMIT SUCH DATA. THE BIDS OFFERED TO MEET, WITHOUT RESERVATION, ALL REQUIREMENTS OF THE SPECIFICATIONS AND WERE SUBJECT TO ACCEPTANCE EVEN THOUGH THE BIDDER DECLINED TO FURNISH ADDITIONAL DESCRIPTIVE DATA. IT FOLLOWS THAT NO OPTION OF ACCEPTANCE OR REFUSAL OF AN AWARD, SUCH AS WOULD RESULT IN UNFAIRNESS TO OTHER BIDDERS, WAS OBTAINED BY MINNEAPOLIS-1MOLINE COMPANY AS A RESULT OF THE CONTRACTING OFFICER'S REQUEST FOR ADDITIONAL DESCRIPTIVE DATA.

WITH RESPECT TO TOWMOTOR'S CONTENTION THAT LACK OF PRIOR LIFT TRUCK PRODUCTION EXPERIENCE ON THE PART OF MINNEAPOLIS-1MOLINE COMPANY MADE IT MANDATORY, FOR THE PURPOSE OF PROTECTING THE INTERESTS BOTH OF THE GOVERNMENT AND OF OTHER BIDDERS, THAT THE COMPANY FURNISHED DESCRIPTIVE DATA IN SUCH DETAIL AS WOULD LEAVE NO DOUBT AS TO THE EXACT NATURE AND CHARACTERISTICS OF THE PRODUCT OFFERED, WE AGREE THAT SOUND PROCUREMENT POLICY REQUIRES CONVINCING PROOF THAT A BIDDER WITHOUT PRIOR PRODUCTION EXPERIENCE HAS THE TECHNICAL KNOWLEDGE AND ABILITY SUCCESSFULLY TO PERFORM THE CONTRACT REQUIREMENTS. IN MOST, IF NOT ALL, CASES THIS MIGHT REQUIRE MORE DETAILED PROOF THAN WOULD BE REQUIRED FROM AN ESTABLISHED MANUFACTURER. HOWEVER, THE NATURE AND EXTENT OF SUCH PROOF MUST BE DETERMINED PRIMARILY BY THE CONTRACTING AGENCY, AND WHERE THE INTERESTS OF THE GOVERNMENT APPEAR TO HAVE BEEN ADEQUATELY PROTECTED, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY. THE INVITATIONS AND CONTRACTS IN THE INSTANT CASE PROVIDE THAT NO LIABILITY ON THE PART OF THE GOVERNMENT SHALL ARISE PRIOR TO DELIVERY OF AN ACCEPTABLE PREPRODUCTION SAMPLE AND IT IS OUR OPINION THAT THIS PROVISION ADEQUATELY PROTECTS THE GOVERNMENT'S INTERESTS. WITH RESPECT TO THE INTERESTS OF OTHER BIDDERS, IT WOULD APPEAR TO BE SUFFICIENT THAT MINNEAPOLIS-1MOLINE IS CONTRACTUALLY BOUND TO MEET THE SAME SPECIFICATION REQUIREMENTS AND DELIVERY REQUIREMENTS THAT ALL BIDDERS WERE REQUESTED TO BID UPON.

IN VIEW OF THE ABOVE, WE AGREE THAT MINNEAPOLIS-1MOLINE COMPANY WAS A RESPONSIBLE BIDDER AND THAT ITS BID WAS RESPONSIVE TO THE INVITATION. THAT PORTION OF THE TOWMOTOR PROTEST WHICH IS DIRECTED TO THOSE ASPECTS OF THE PROCUREMENTS IN QUESTION IS, THEREFORE, REJECTED.

THE SECOND PORTION OF THE TOWMOTOR PROTEST IS LIMITED TO THE AWARD UNDER IFB 600-63-60, AND CONTENDS THAT THE ACTION OF THE DEPARTMENT OF THE NAVY IN ACCEPTING THE 9,000-POUND SHIPPING WEIGHT LISTED IN THE BID OF MINNEAPOLIS-1MOLINE COMPANY AND USING SUCH WEIGHT IN EVALUATING THE BID WAS ERRONEOUS. STATED BRIEFLY, TOWMOTOR POINTS OUT THAT WEIGHT IS AN IMPORTANT FACTOR IN FORK-LIFT TRUCKS AND IS DIRECTLY RELATED TO BOTH THE STABILITY AND THE LIFTING CAPACITY OF SUCH VEHICLES, BOTH OF WHICH ARE SPECIFICATION FACTORS. IN VIEW THEREOF, TOWMOTOR CALLS ATTENTION TO THE FACT THAT THE OTHER EIGHT BIDDERS ON 6,000-POUND LIFT CAPACITY TRUCKS ARE ALL ESTABLISHED MANUFACTURERS OF SUCH TRUCKS, HAVE DEFINITE KNOWLEDGE OF THE WEIGHT OF THEIR PRODUCTS, AND SUBMITTED WEIGHTS RANGING FROM 9,600 POUNDS (AMENDED BY LETTER DATED DECEMBER 31, 1959, TO 10,060 POUNDS) TO 11,550 POUNDS. TOWMOTOR POINTS OUT THAT THE AVERAGE WEIGHT DECLARED BY THE EIGHT ESTABLISHED MANUFACTURERS IS IN EXCESS OF 10,600 POUNDS; THAT NO FORK-LIFT TRUCKS WEIGHING LESS THAN 10,000 POUNDS AND MEETING THE REQUIREMENTS OF THE SPECIFICATIONS CONTAINED IN THE INVITATION HAVE EVER BEEN MANUFACTURED FOR, OR TESTED BY, THE CONTRACTING AGENCY; AND THAT THE CONTRACTING AGENCY SHOULD, THEREFORE, HAVE CONCLUDED THAT THE 9,000-POUND FIGURE WAS ERRONEOUS AND REFUSED TO USE IT IN EVALUATING THE BID. TOWMOTOR SUGGESTS THAT WITHOUT EVIDENCE, SUCH AS DETAILED ENGINEERING DRAWINGS, RESULTS OF PREVIOUS TESTS, OR OTHER SATISFACTORY PROOF THAT A 9,000-POUND TRUCK WAS TECHNICALLY FEASIBLE, THE CONTRACTING AGENCY SHOULD HAVE EVALUATED THE BID ON A WEIGHT FIGURE BASED UPON ITS OWN EXPERIENCE, SUCH AS THE AVERAGE WEIGHT OF LIFT TRUCKS PREVIOUSLY PURCHASED, OR AVERAGE WEIGHT SHOWN ON ALL OTHER BIDS RECEIVED, AND POINTS OUT THAT USE OF ANY WEIGHT IN EXCESS OF 9,600 POUNDS IN EVALUATING THE MINNEAPOLIS-1MOLINE BID WOULD HAVE RESULTED IN MAKING THE TOWMOTOR BID LOW.

ADDITIONALLY, TOWMOTOR CALLS ATTENTION TO THE FACT THAT THE CONTRACTING AGENCY INCLUDED A PROVISION IN THE CONTRACT AWARD MAKING MINNEAPOLIS- 1MOLINE COMPANY LIABLE FOR THE PAYMENT OF FREIGHT ON ANY WEIGHT IN EXCESS OF 9,000 POUNDS, EVEN THOUGH THE INVITATION DID NOT ASK FOR A GUARANTEED SHIPPING WEIGHT OR OTHERWISE PROVIDE FOR THE INCLUSION OF SUCH A PROVISION IN THE CONTRACT. IT CONTENDS THAT THE EFFECT OF SUCH ACTION IS TO PERMIT A BIDDER TO GIVE A LOW WEIGHT WITH THE EXPECTATION THAT THE ONLY PENALTY WILL BE A REQUIREMENT THAT HE ABSORB THE EXCESS FREIGHT COST, AND THAT FAILURE TO ADVISE ALL BIDDERS OF SUCH INTENTION IN SO UNFAIR TO OTHER BIDDERS AS TO RENDER THE CONTRACT INVALID.

WHERE BIDS ARE INVITED ON AN F.O.B. ORIGIN BASIS, THE COST TO THE GOVERNMENT OF DELIVERY TO INITIAL DESTINATION SHOULD BE CONSIDERED IN SELECTING THE LOW BID. 37 COMP. GEN. 162, 164; 10 COMP. GEN. 402, 404. IT IS NORMAL PRACTICE WHEN, AS IN THIS CASE, WEIGHTS MAY VARY, TO REQUIRE THAT GUARANTEED SHIPPING WEIGHTS BE STATED IN EACH BID WITH THE PROVISION THAT THE CONTRACTOR WILL BE LIABLE FOR ANY ADDITIONAL SHIPPING COSTS INCURRED BY THE GOVERNMENT BY REASON OF VARIATION BETWEEN GUARANTEED AND ACTUAL WEIGHTS. SEE 37 COMP. GEN. 162, 165. IN SUCH SITUATIONS, THE SUBMISSION OF A GUARANTEED WEIGHT LESS THAN ACTUAL DOES NOT AFFECT THE EVALUATION OR VALIDITY OF THE BID SINCE IT IS RECOGNIZED THAT THE VARIATION OF THE GUARANTEED WEIGHT IS IN EFFECT NO MORE THAN A REDUCTION IN THE BID PRICE. 38 COMP. GEN. 819.

IN THE PRESENT CASE, THE INVITATION DID NOT REQUIRE THAT THE SHIPPING WEIGHT BE GUARANTEED NOR DID IT PROVIDE THAT THE CONTRACTOR WOULD BE RESPONSIBLE FOR EXCESS SHIPPING COSTS INCURRED BECAUSE THE ACTUAL WEIGHT EXCEEDED THAT STATED. SOME QUESTION, THEREFORE, MIGHT BE RAISED AS TO WHETHER THE STATED SHIPPING WEIGHT COULD BE CONSTRUED TO IMPOSE ANY LIABILITY UPON THE CONTRACTOR. IN THIS INSTANCE, HOWEVER, THE SHIPPING WEIGHT GIVEN IN THE MINNEAPOLIS-1MOLINE BID WAS MODIFIED BY THE WORD "APPROXIMATELY.' CONSEQUENTLY, ANY WARRANTY WHICH MIGHT BE INFERRED WOULD BE SUBJECT TO VARIATION UPWARD. ON THE BASIS OF THE TRANSPORTATION COSTS USED IN BID EVALUATION, IT APPEARS THAT MINNEAPOLIS-1MOLINE WOULD NOT BE THE NEXT LOW BIDDER IF THE ACTUAL WEIGHT OF ITS EQUIPMENT VARIED UPWARD BY AS LITTLE AS 10 PERCENT.

COMPETITIVELY ADVERTISED PROCUREMENTS UNDERTAKEN BY THE MILITARY AGENCIES MAY BE AWARDED UNDER 10 U.S.C. 2305 (C) ONLY TO THOSE BIDDERS WHOSE BIDS CONFORM TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES. THE STATUTORY PROVISION IS INTERPRETED TO REQUIRE AWARD IN EACH CASE TO THE RESPONSIBLE BIDDER SUBMITTING THE LOWEST RESPONSIBLE BID. COMP. GEN. 550. AS INDICATED ABOVE, ONE OF THE FACTORS FOR CONSIDERATION IN THE SELECTION OF THE LOW BID SUBMITTED ON AN F.O.B. ORIGIN BASIS IS THE COST TO THE GOVERNMENT OF SHIPPING TO INITIAL DESTINATION. WHERE THE SHIPPING WEIGHT USED TO CALCULATE THIS FACTOR IS FURNISHED BY THE BIDDER WITHOUT ANY ASSURANCE OF OR RESPONSIBILITY FOR ITS ACCURACY, THE USE OF SUCH INFORMATION AS THE DECISIVE FACTOR IN DETERMINING THE LOW BIDDER APPEARS TOTALLY WITHOUT FOUNDATION, AT LEAST IN THE ABSENCE OF CLEAR EVIDENCE THAT THE ACTUAL SHIPPING WEIGHTS WILL NOT AFFECT THE RELATIVE STANDING OF BIDDERS. THE SELECTION OF A LOW BIDDER ON THE BASIS OF UNGUARANTEED SHIPPING WEIGHTS IN CASES WHERE SUCH WEIGHTS VARY AMONG PRODUCERS INTERESTED IN THE PROCUREMENT IS IMPROPER. SEE A-93678, APRIL 2, 1938; A-57694, NOVEMBER 23, 1934.

THE LOW BID ON AN F.O.B. ORIGIN BASIS IN RESPONSE TO INVITATION FOR BIDS NO. 600-63-60 WAS SUBMITTED BY TOWMOTOR AND NOT BY MINNEAPOLIS 1MOLINE. THE LATTER'S BID WAS ACCEPTED BECAUSE OF EVALUATED LOWER SHIPPING COSTS TO THE GOVERNMENT BASED ON ESTIMATED SHIPPING WEIGHTS IN THE BID. THERE APPEARS TO BE CONSIDERABLE QUESTION BOTH WITHIN THE DEPARTMENT OF THE NAVY AND THE INDUSTRY GENERALLY AS TO WHETHER THE SHIPPING WEIGHT OF ANY ITEM MEETING THE SPECIFICATIONS WOULD BE CLOSE ENOUGH TO SUCH ESTIMATE TO RENDER THE MINNEAPOLIS-1MOLINE BID LOW. WHILE THE MEMORANDUM OF NOVEMBER 6, 1959, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, WHICH WAS REAFFIRMED DECEMBER 8, 1959, STRONGLY INDICATES THAT NO ITEM MEETING SPECIFICATIONS COULD APPROXIMATE THE SHIPPING WEIGHT SUBMITTED BY MINNEAPOLIS-1MOLINE CLOSELY ENOUGH TO MAKE THAT FIRM'S BID LOW, A MEMORANDUM WRITTEN BY THE CONTRACTING OFFICER ARRIVES AT THE OPPOSITE CONCLUSION, NOTING THAT A FORK-LIFT TRUCK OF THE DESIRED CAPACITY WITH A SHIPPING WEIGHT OF 9,000 POUNDS HAS ALREADY BEEN PRODUCED BY ERICKSON POWER LIFT TRUCKS, INC., OF MINNEAPOLIS, MINNESOTA.

THE CONTRACT AWARDED TO MINNEAPOLIS-1MOLINE ON DECEMBER 21, 1959, REQUIRES THE CONTRACTOR TO BEAR ALL SHIPPING COSTS RESULTING FROM WEIGHT IN EXCESS OF THE ESTIMATE. HOWEVER, ON THE BASIS OF ITS BID AS SUBMITTED, THE SUCCESSFUL BIDDER WAS NOT OBLIGATED TO ENTER INTO A CONTRACT CONTAINING A GUARANTEED SHIPPING WEIGHT AND TO THAT EXTENT WAS GRANTED THE NORMALLY UNOBTAINABLE AND FORBIDDEN ,TWO BITES AT THE APPLE.' CF. 38 COMP. GEN. 532.

WE HAVE THE FOLLOWING COMMENTS REGARDING THE AWARD ON IFB NO. 600 63.60:

1. THE ACCEPTANCE IN ESTABLISHING THE LOW BID OF AN ESTIMATED "APPROXIMATE" SHIPPING WEIGHT FURNISHED BY A BIDDER FOR THE ACCURACY OF WHICH THE BIDDER HAS ASSUMED NO RESPONSIBILITY MAY WELL RESULT IN THE AWARD OF A CONTRACT TO OTHER THAN THE LOW RESPONSIBLE BIDDER CONTRARY TO 10 U.S.C. 2305 (C).

2. THERE WAS CONSIDERABLE QUESTION AS TO WHETHER THE MINNEAPOLIS 1MOLINE BID AS SUBMITTED WAS THE LOW BID AS THAT TERM IS NORMALLY DEFINED.

3. A CONTRACT AWARDED PURSUANT TO COMPETITIVE BIDDING SHOULD NOT INCLUDE MATERIAL PROVISIONS VARYING FROM THOSE INCORPORATED IN THE INVITATION.

4. WHERE THE SHIPPING WEIGHT OF AN ITEM UNDER PROCUREMENT MAY VARY AMONG SUPPLIERS, WITH A RESULTANT MATERIAL VARIATION IN TRANSPORTATION COSTS, AND SUCH COSTS ARE MADE A FACTOR IN BID EVALUATION, IT IS MANDATORY THAT THE INVITATION CALL FOR GUARANTEED SHIPPING WEIGHTS AND ABSORPTION OF EXCESS SHIPPING COSTS BY THE SUCCESSFUL BIDDER.

IN THE INSTANT CASE, A RECOMPUTATION OF THE TRANSPORTATION COSTS HAS BEEN MADE WHICH DISCLOSES THAT THE MINNEAPOLIS-1MOLINE BID IS LOW, PROVIDED THE TRUCKS WEIGH LESS THAN 9,753 POUNDS EACH. EVIDENCE HAS ALSO BEEN PRESENTED WHICH INDICATES THAT MINNEAPOLIS-1MOLINE WILL FURNISH ACCEPTABLE 6,000-POUND CAPACITY FORK-LIFT TRUCKS WEIGHING CLOSE TO 9,000 POUNDS AND DEFINITELY LESS THAN 9,753 POUNDS. IN SUCH CIRCUMSTANCES, WE DO NOT FEEL JUSTIFIED IN DISTURBING THE AWARD MADE TO THAT COMPANY.